REPORT ON FEDERAL-PROVINCIAL-TERRITORIAL CONSULTATIONS
Children are directly affected by the decisions parents and judges make during separation and divorce. Understanding the children's perspectives on the way parents propose to care for them is essential if the children's best interests are to remain the central focus of decisionmaking. In Canada, the family law system currently provides a number of ways children's perspectives may be heard, including having judges speak directly to the children, custody and access assessments, and through lawyers or others representing children's interests.
Participants discussed the following questions:
- Does the current family law system adequately take children's perspectives into account?;
- Should children's perspectives be better incorporated during discussions on custody and access?; and
- How can children's perspectives be better incorporated into discussions on custody and access (during mediation, negotiation or the court process)?
Some respondents said that the current family law system does theoretically enable children's perspectives to be taken into account, but that, in practice, the law is applied with varying degrees of adequacy. They attributed this unevenness to several sources:
- judges, who make their own decisions about whether they will hear from children;
- the children's ages (some children are too young to be consulted, while older children can be difficult to talk and relate to); and
- the lack of training for those whose task it is to elicit children's opinions.
Other respondents said that, while children are consulted, the process can take a long time and it is very difficult for children to spend weeks or months waiting to have their say.
The experiences of young people as expressed in the youth sessions reinforce the belief that children's perspectives are taken into account to varying degrees. Most of the young people were not asked their opinion during their parents' separation, mostly because they were considered too young. Others reported that they had spoken to the judge or to lawyers about their preferences, how their parents treated them, and even with which parent they wanted to live.
Some respondents were in favour of children's perspectives being better incorporated during discussions on custody and access. However, they qualified their support with the following statements:
- Children's opinions should not be the only basis for decisionmaking;
- Children should not be forced to choose between one parent and the other;
- Judges and lawyers should be more critical when considering children's opinions;
- Only children over the age of 12 should be consulted;
- Children should be consulted only when there are ongoing concerns about access; and
- Children's perspectives should be included only when they are distinct from those of their parents.
Other respondents brought up the fact that, in traditional Inuit culture, the children's opinions on where they would like to live after the separation would be solicited and respected.
Still others mentioned that the child counsel model being used in New Zealand and Australia demonstrates the benefits of including children in decisionmaking, and could be a model for Canada to consider.
Some young people agreed that they should be consulted during the separation process and that this would have a positive effect on the resulting custody arrangement. However, they emphasized that, although they wanted to be informed about the situation and allowed to give their opinion, they do not want to be embroiled in conflicts between their parents, or to have to select the custodial parent themselves.
Other young people were happy that they had not been involved in discussions on custody and access during their parents' separation and said that this was appropriate. The reasons they gave for not wanting to be involved included the following:
- It is the parents' decision to make, not the children's;
- Children don't understand the situation well enough to make a decision;
- Taking part in decisionmaking would have emotional consequences (children would feel they had rejected one parent and would worry that they had disappointed the parent they chose not to live with); and
- Children are accustomed to the existing custody arrangement and would not want to change it, even when they were older than when the original decision was made.
Some participants in the youth workshops also pointed out that even if they were asked their opinion, it might not be taken into account. They said that if parents are not going to take their children's opinions into account, they would be better off not involving the children.
Some respondents emphasized the need to safeguard children's well-being while they are participating in the decisionmaking process, and gave the following examples:
- Children should not be forced to contribute to the discussion, as this would place too much pressure on them;
- The legal process should protect children from repercussions from parents or parents' lawyers;
- When children speak with a judge in a separate hearing (away from their parents), the hearing should be recorded;
- If children are asked to participate in mediation, they should only have to do so when they are comfortable with the mediator and their parents are not in the room;
- Those eliciting the children's perspectives should be properly informed and trained in the correct way to do so;
- Children should be directly told of the resulting decisions (for example, by the judge if the case has gone to court). That way they will understand what happened and why a particular decision was made;
- Children's opinions should be solicited early in the process, so that children are subjected to the least possible pressure from either parent;
- Similarly, an expeditious approach is best, given that the waiting is very hard for a child who is told that he or she will have to give an opinion at a court hearing that is weeks or months off;
- Children should only be heard during mediation, and should be kept out of court; and
- Judges and lawyers are not qualified to deal with children, so assessments by trained professionals are needed. Some youth participants agreed with this, indicating that they would prefer to speak with psychologists and social workers rather than lawyers or judges.
With regard to children having their own lawyers, some respondents raised concerns based on their experiences. In some cases, they felt that children's lawyers became de facto second lawyers for mothers. The respondents suggested that, if children are to be allowed their own lawyers during the divorce process, these lawyers should have a well-defined role and be properly trained and equipped to receive instructions from their clients and determine their best interests. These respondents also felt that ethical conduct codes were needed for children's lawyers that would address, among other things, the need for neutrality with respect to the children's parents.
Other respondents said that children should be able to have their own lawyers when they are able to instruct them and when the assessor who has been assigned to them is unable to adequately represent their needs.
During the youth workshops, participants came up with several factors that they felt should affect the level of children's involvement in decisionmaking about custody and access:
- age: children who are too young or immature would not be able to participate meaningfully in decisionmaking; however, participants did not agree on the age at which children should be more involved (their suggestions ranged from 13 or 14 years old to older than 16);
- support: children who are unable to decide for themselves (for example, because they are too young) should receive support from a psychologist or other professional so that they can be involved;
- information: children need information about the situation and the possible repercussions of their decisions if they are to participate;
- relationship with parents: if the relationship is strained or minimal (for example, when the children have lived with only one parent for a long time), it would affect the children's ability to make unbiased decisions. Some participants mentioned that they would have to see whether their other parent is worth getting to know and cares about them; and
- emotional well-being: they want to protect their own emotional well-being during the process and to be fair to themselves.
Other factors to be taken into account in deciding whether and how children's perspectives should be incorporated include the following:
- whether the children have special needs;
- whether the children's parents are physically abusive;
- whether the parents have very different cultural backgrounds or values; and
- whether the parents have a high conflict relationship.
Respondents made other comments about including children's perspectives, such as the following:
- The only way for children's perspectives to be heard clearly is to remove the process of divorce and separation from the legal system entirely, doing away with the concept of winners and losers; community service providers could then handle the situation;
- Counsellors and psychologists should not play a role in interpreting children's needs and perspectives because they make a living selling their opinions;
- Enacting the recommendations of the Special Joint Committee on Child Custody and Access would resolve the question of incorporating children's perspectives; and
- Any child who does not want a relationship with one of his or her parents is a victim of parental alienation syndrome and should be removed from the parent who caused that syndrome.
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